S.C. NO. 4/96

IN THE SUPREME COURT OF SIERRA LEONE BETWEEN:

ALL PEOPLE'S CONGRESS                                 - PLAINTIFFS

AND NASMOS

AND

MINISTRY OF SOCIAL WELFARE

YOUTH AND SPORTS                                           - DEFENDANTS

CONSTITUTIONAL REFERENCE BY WAY OF CASE STATED The Plaintiff, the All People's Congress issued a writ of summons against what ware then known as NASMOS and the Ministry of Social Welfare Youths and Sports. NASMOS was the shortened same of National Association for Mobilisation Secretariat. It was an appendage of the said Ministry during the reign of the National Provisional Ruling Council."

The Plaintiffs' claimed against the Defendants.

"(1) The recovery of possession of the premises known as 39, Siaka Stevens Street, Freetown.

(2) Mesne profits at the rate of Le4,000,000.00 (Four Million Leones) per annum from the 29th April 1992 until possession is yielded up.

(3) Damages for trespass.

(4) A perpetual injunction to restrain the Defendants whether by themselves, their servants or agents howsoever called from entering or remaining in the said property.

(5) Damages for conversion of air conditioners.

(6) Malicious damage.

(7) Interest".

On the 30th April 1996, the Defendants filed a motion in the High Court seeking the following orders:                                                                                     

2 "(1) That the above-mentioned writ be set aside for irregularity and for informality on the grounds that the Plaintiffs herein failed to comply with the provisions of the Petition of Bight Cap. 23 of the laws of Sierra Leone in that he issued a writ of summons against NASMOS and the Ministry of Social Welfare, Youth and Sports. (2) That the Plaintiffs pay the cost of the application".

The Plaintiffs were represented by Mr. A.F. Serry-Kamal while state counsel J.G. Kobba Esq. acted for the Defendants. When the motion came up for hearing Mr. Kobba submitted that the Court had no, jursidiction to try the matter because the Plaintiffs had failed to comply with the requirements of section 3, 4 & 5 of the Petition of Right (Cap. 23.)

Section 3 confers on private individuals the right to sue the State but only after first obtaining the fiat of the Attorny General. Section 4 on its part, lays down the mode of commencement of such proceedings. This only requires the filing of a statement of claim, while section 5 deals with the method of transmission of the statement of claim and the endoresement of the fiat of the Attorney General thereon. Because of such non-compliance, counsel for the Defendants.

urged the court to set aside the writ of summons.

Mr. Serry-Kamal on the other hand maintained that the application , should be dismissed because not only had section 133 (1) of the Consti-tution impliedly repealed Section 3, 4 & 5 of Cap. 23, but it had also made it no longer necessary for a claimant to obtain the prior consent of the Attorney General before the institution of proceedings against the State.

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More specifically, section 133 0) provides,

"Where a person has a claim against the Government that claim may be enforced as of right by proceedings taken against the Government for that purpose, without the grant of a fiat or the use of the process known as Petition of Eight".

The motion was adjourned for state counsel to reply to Mr. Serry-Kaicel's submission when the court resumed. Mr. Kobba, while conceding that section 113 (1) of the Constitution gave litigants the right to sue the Government without first getting ox obtaining the fiat of the Attorney General, argued that the exercise of such right was limited by the provisions of section 133 (2) which stipulate that, "Parliament shall by an lot of Parliament make provision for the exercise of the jursidiction under this section".

So, Mr. Kobba contended that until such time as Parliament takes the necessary steps to implement abbsection 133 (2) the commencement of all claims against the State must conform with the requirements of the provisions of Cap. 23 section 3,4 & 5.

At this junction, and being a question of law, the court suspended the proceedings as demanded by section 124 (2) of the Constitution and referred the matter to the Supreme Court.

According to this sub-section,

"Where any question relating to any matter or question as is referred to in sub-section (1) (Interpretation of the Constitution) arises in any proceedings in any Court, other than the Supreme Court, that Court shall stay proceedings and refer the question of law involved to the Supreme Court for determination; and the court in which the question arose shall dispose of the matter

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in accordance with the decision of the Supreme Court".

The learned trial judge then posed the following three questions for the consideration of the Court,

"(1) Is Section 153 (1) of the 1991 Constitution inoperative until section 133 (2) is effected by Parliament?

(2) If the answer is in the negative, can the High Court Rules apply to put into operation section 133 (1) in the absence of Parliament affecting Section 133 (2).

(3) What is the state of the parties right as at present in relation to section 133 (1)

In the Supreme Court we invited counsel on both sides to file their case in writing and thereafter, they more or less repeated their arguments and submissions in the High Court.

Since this is the first time the interpretation of Section 133 (1) has come before the Court, it is important that one does more than merely give straight-forward answers to the questions referred to us. I hope, I will be forgiven for making extensive references to other jursidictions than might otherwise be necessary.

The immediate consideration that comes to mind is, what approach should the Court in interpreting a constitutional as opposed to a statutory provision adopt?

There is certainly no unanimity in practice here. The approaches seem to vary from jursidiction to jursidiction and sometimes, like Canada, even from period to period.

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The conflict has always centered around the question whether the Constitution is to be treated as an ordinary statute to be interpreted in accordance with the ordinary (restrictive) rules of statutory construction or whether it is something more - a "Constitutional statute" and bo deserves a more "beneficial" interpretation.

The Privy Council's construction of the British North America Act of 1867 in Att - General for Canada V.A.G. for Ontario (1937) A.C. 326 (P.C.) vividly demontrated that body's often reluctant attitude towards differentiating between constitutional and statutory documents.

Again in Colonial Sugar Refining Co. v Att Gen (1914) AC, 237 (PC) the Privy Council observed that the Canadian Constitution is just another piece of British legistation. See also Bank of Toronto v Lambe (1887) 12 A0, 575.

Chief Justice Mashall on his part seemed to suggest a different standard ought to apply in construing constitutional provision} when he said in McCullooh v Maryland 1705, 4 Wheaton 316 (1819) at page 136"we must not forget that it is Constitution we are expounding" Lord Sankey in his famous dictum in British Coal Corporation v The King (1935) 500 (PC) expressedly recognised that,

"In interpreting a Constitution or organic statute such as the British North America Act, that constrcu-tion most beneficial to the widest possible amplitude of its powers must be adopted".

Five years earlier in 1930, he had declared in Attorney General for Canada that,

"The British North America Act planted in Canada a living tree capable of growth and expansion within

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its natural limits. The object of the Act was to grant a Constitution to Canada. Their Lordships do not conceive it to be the duty of this Board - it is certainly not their desire — to out down the provisions of the Act by a narrow and technical construction: but rather to give it a large and liberal interpretation" - Edwards v Attorney General for Canada (1930) AC 124. 136 PC

And in the celebrated Indian case of Gopalan v The State of Madras (1950) SCR 88 while adopting the language of an Australian decision(A.G. for New South Wales v Brewery- Employees' Union') (1908) 6 C L R 469, Chief Justice Kania observed that,

"Although we are to interpret words of the Constitution as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting - to remember that it is a Constitution, a mechaniam under which laws are made and not a mere Act which declares what the law is to be".

In Adegbenro v Akintola (1963) AC 614 (PC) the Nigerian Supreme Court displayed far greater imagination than the Judicial Committee of the Privy Council in regarding the Constitution as something more than a British Government law.

I will next come to what I believe is the thrust of Mr. Kobba's argument that section 133 sub-sections (1) & (2) of the Constitution should be read conjunctively and not in isolation of each other.

I do accept that as a general rule of construction a Constitution like a statute must be read as a whole. In other words the entire

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Constitution should be examined fox the purpose of determining the intention of each Section ox part. This is what is often referred to as the principle of harmonius construction. Its aim is no doubt, to reconcile different provisions of the Constitution.

Thus in State of Madras V Champakam (1951) SCS 525 and Qutreshi V State of Bihar (1958) SC 731 the Indian Supreme Court held that the Directive Principles of State Policy enshrined in the Constituion have to be construed and implemented in such a manner as not to take away ox abridge the fundamental rights of the individual. Likewise, that, Court has ruled that though Hindi is the national language and Article 351 of the Indian Constitution makes special provision directing the State to promote the spread of Hindi such object cannot be achieved by any means which violate the protection of the interests of minorities guaranteed by Articles 29 and 30 - see State of Bombay 7 Bombay Education Society (1955) SCR 568

However, it is a cardianl principle of construction too that where the words of a section axe clear,

"The rule of construction can require that..... it shall be necessary to introduce another part of the statute which speaks with less perspective and of which the words may be capable of such construction as by possibility to diminish the efficacy of the provisions of the Act-Vide Warburton Y Loveland (1828) 1 H & B 448.

And finally in the words of the Supreme Court of India,

"If two constructions axe possible, then the court must adopt that which will ensure the smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity ox give rise to practical inconvenience ox make well established provisions of existing law nugatory" - State of Punjob T Ajaib singh (1953) S C R 254.

Mr. Serry-Kamal in his submission appealed to the Court not to readsection133(i)togethex with Section 133 (21. He said the two

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subsections should be treated separetly. He further submitted that in so fax as Cap. 23 is concerned it is only section 3, 4 & 5 therefore that are inconsistent with the provisions of section 133 (1) and to the extent of that inconsistency are rendered void by section 171 (15) of the Constitution. The rest of the provisons in Cap. 23 according to him remain valid and operational, more particularly, section 8 which provides that,

"Sofar as the same may be applicable, and except in so fax as may be inconsistent with this Act all the powers, authorities and provisions contained in the Courts Act, or in any enactment extending or amening the same and the practice and course of procedure of the High Court, shall extend and apply to all suits and proceedings by or against the Government and in all such suits, costs may be awarded in the same manner as in suits between private persona".

I find Mr. Serry-Kamal's argument attractive and I will agree with him that section 133 (1) of the Constitution has impliedly repealed and replaced sections 3, 4 & 5 of Cap. 23. It is my further view that until such period as Parliament brings into operation the provisions of section 193 (2) the correct procedure applicable to suits brought under section 133 (1) is that prescribed under the existing law i.e. Section 8 of Cap. 23. Under the English Crown Proceedings Act 1947, in principle it is the normal procedure in civil litigation that applies.

To hold otherwise will, I believe, work great hardship on would-be litigant who may have legitimate claims against the state and are eager to pursue them. I beg to differ with counsel fox the Defendants contention that claimants against the Government have to pursue, their rights by means of the laborious and long-winded process under sections 3, 4 & 5 of the Petition of Hight requiring, among other things the prior consent of the Attorney General. What happens if the fiat of the Attonney General is not forthcoming? Would that not surely leave the poor litigant in limbo?

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To all intents and purposes section 133 0) has for the first time conferred a new right - that of being able to commence an action against the government without having previously obtained the Attorney General's fiat That right must not be fettered simply because Parliament has not over a period of nine years or so thought it worth-the-while to prescribe rules and regulations for the exercise of jursidiction under section 133(2).

Let me now examine the position of the "existing law" vis-a-vis the Constitution Section 170 (1) of the Constitution states that the laws of Sierra Leone shall comprise:-

"(a)................

(b)................

(c)................

(d) the existing law and by Section 176 "existing law" is defined as,

"Any Act, rule, regulation or other such instrument made in pursuance of or continuing in operation under the existing Constitution and having effect as part of the laws of Sierra Leone or of any part thereof immediately before the commencement of this Constitution (or any Act of the Parliament of the United Kingdom or Order of Her Majesty in Council so having effect and may be continued with such Modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with this Constitution as if it had been made under this Constitution".

Section 177 0) then went on to say,

"The existing law shall, not withstanding the repeal of the Constitution of Sierra Leone Act 1978, have effect after the entry into force of this Constitution as if they had been made in pursuance of this Constituion and shall be read and construed with such modifications, adaptation} qualifications and exceptions as may be necessary to bring them into

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conformity with this Constitution".

The Constitution having this clearly and copiously explained the position of the existing law, it do not see the reason why this Court cannot apply that part of Cap. 23 which has not been either expressly or impliedly revoked, such as section 8 in particular, to give meaning and teeth to the provisions of Section 133 (1).

As an exponent of the liberal approach myself, I hold the view that section 133 (2) of the Constitution must be interpreted in a manner that will not impede the fulfilment of the right granted by Section 133 (1). It could hardly have been in the contemplation of the makers of the Constitution that what they had given by the right hand they had taken away with the left. Moreover, when one reads section 133 (1) side by side with the provisions of Section 21, dealing with the protection from deprivation of property and Section 28, the enforcement section, the case for. giving effect to seotion-133 (1) inspite of section 133 (2) becomes even more comp elling. The main complaint here is that the Plaintiffs' property had been compulsorily acquired by the Defendants. Indeed, the Plaintiff could have applied to the Supreme Court by motion under section 28 for redress. The fact that they had chosen to proceed under Section 133 (1) should not prejudice thier Par chances of success simply because Parliament had failed to pass the necessary legistation under Section 133 (2)

I will end by reverting to the specific questions posed by Nylander J-i.e. "(1) Is section 133 0) of the 1999 Constitution inoperative until S133 (2) is effected by Parliament? My answer is No. (2)' If the answer is in the negative, can the High Court Rules apply to put into operation S133 (1) in the absence of Parliament affecting 8133 (2)?

My answer is YES

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(3) What is the state of a parties right, as at present in relation to S133 (1).

This question is by no means clear. In any case because of what I have already said in (1) & (2) above, I do not think I need to answer it.

Hon. Mr. Mustice A.S. Timbo, JSC

CORAM:

Hon.  Mr. Justice D.E.F. Luke -      Chief Justice

Hon.   Mr. Justice A.B. Timbo - JSC

Hon.  Mr. Justice H.M. Joko-Smart - JSC

Hon.  Mrs. Justice V.A.2. Wright - JA

Hon.   Mr. Justice M.E. Tolla-Thompson - JA